July 30, 2009 04:46 AM UTC

The TABOR Battle, Federal Court Re-Mix

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• by: Patrick Sean Byrne

( – promoted by ClubTwitty)

Well well well.

At today’s meeting of the Colorado General Assembly’s Long Term Fiscal Stability commission, members of the public were invited to give brief remarks before the commission regarding what to do to help solve the perpetual fiscal crisis caused by Colorado’s constitutionally-enshrined Gordian knot of competing, internally inconsistent, arbitrary, and meaningless fiscal formulas.

One of the citizens who gave testimony was Herb Fenster, a recognized Colorado Super Lawyer with a freakish academic CV and professional record.  He first suggested that the University of Colorado at Boulder ought to be set free to operate as a private institution with a public charter à la Cornell University.  This would normally be thought of as controversial (although as a CU-Boulder class of ’02 alum, I think it’s a great idea), but what he announced next will make life interesting in Colorado for years to come.

On behalf of several yet-to-be-named plaintiffs (including several state legislators, apparently), Fenster’s firm (McKenna, Long, and Aldridge, a high powered firm with a presence on K Street) will be suing the State of Colorado in the  United States District Court for the District of Colorado on the following complaints:

1.) The Taxpayer’s Bill of Rights (TABOR) violates Article 4, Section 4 of the United States Constitution (and, by extension, the Enabling Act of Colorado) because, by taking away the power to tax from the General Assembly, Colorado is in fact a direct democracy in violation of federal guarantees of a republican form of government; and

2.) The General Assembly violated the federal False Claims Act by transferring privately donated funds and restricted federal funds to Colorado’s General Fund.

As you may imagine, the entire room was stunned.  For perhaps the first time since he was in diapers, Senator John Morse (D-Jesusland) struggled to speak in well-articulated, complete sentences.

The complaint, which will be filed sometime this fall, will be sealed for sixty days so as to allow the United States Attorney General the opportunity to examine the complaint and decide whether to join as a plaintiff.

From a quick discussion with several lawyer friends who shall go nameless, it appears the plaintiffs have an uphill battle.  There is case law in Oregon regarding challenges related to a “republican” form of government; basically, they fought the law and the law won.  In addition, this could be the kind of case where the Judicial Branch completely steps aside (as happened recently in the ongoing New York Senate coup d’etat clown show power struggle).

As far as I am aware, this is the first time a Colorado constitutional amendment has been challenged in the federal courts since Senator Pat Steadman took down Amendment 2.  Regardless of the outcome, prepare to be thoroughly entertained.

Patrick

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